In RSA-5672-2019 (O&M)-PUNJ HC- Last Will of testator is to prevail if different Wills are executed, rules P&H HC Justice Anil Kshetarpal [25-03-2022]

Read Order: Surjit Kaur v. Rashmi Puri and Others

Monika Rahar

Chandigarh, April 14, 2022: While terming the present appeal as abuse of process of law, the Bench of Justice Anil Kshetarpal of Punjab and Haryana High Court has held that in case the testator executes multiple Wills, the last Will of such testator is to prevail. 

In this case, late Sh. Sohan Singh Padda (the testator) was the exclusive owner of the property, he executed a registered Will in favour of his son and daughter while excluding the second daughter, who is settled in England. As per the registered Will, he bequeathed portion A and C in favour of Mohinder Kaur (his daughter) whereas portion B was bequeathed in favour of Sh.Mohinder Singh (his son). 

Smt. Mohinder Kaur, after having admitted the execution of the Will, in the written statement, came up in appeal, while the second sister Surjit Kaur directly filed a second appeal in the High Court. The registered Will was proved by examination of the attesting witnesses Amarjit Singh. Smt.Surjit Kaur did not file any written statement and did not even apply for setting aside the ex parte decree. 

The Counsel representing Surjit Kaur contended that the testator was frequently changing his Wills. He cast suspicion around the third Will by contending that the beneficiary and her husband participated in the execution of the Will and therefore, it should not have been relied upon. He further argued that the original Will was not produced and in the absence of application for permission to lead secondary evidence, the Will could not be said to have been proved. 

The counsel representing Smt. Mohinder Kaur stated that she was in exclusive possession of the entire property and therefore, the suit for possession could not be decreed. In the alternative, he submitted that as per Section 22 of the Indian Succession Act, 1925, she was entitled to defend her possession. 

Per contra, the Counsel representing the respondents contended that the execution of the Will was proved in accordance with Section 68 of the Indian Evidence Act, on examination of one of the attesting witnesses. He further contended that Jagtar Singh, an official from the office of the Sub Registrar, brought the record from his office and produced the Will for the perusal of the Court. Smt. Mohinder Kaur’s counsel did not object to the admissibility of the aforesaid Will. They further contend that the testator while bequeathing the property divided the same into three separate parts namely A, B and C. Portion A and C was bequeathed in favour of Smt. Mohinder Kaur (undisputed fact), while portion B was bequeathed in favour of Sh. Mohinder Singh, who sold his portion of the property in favour of the respondents (plaintiffs). 

After considering the submissions of the parties, the Court opined that this litigation was an “abuse of the process of the Court”. This remark was made by the Court in light of the fact that Smt. Mohinder Kaur, while filing the written statement before the trial court, did not dispute the correctness of the Will and also while appearing in evidence, she admitted that portion B exclusively belonged to Sh. Mohinder Singh, her brother. The Court also noted that she came up in appeal after having taken the above-stated stand before the trial court and suffering a decree. 

The Court then went on to examine the argument with regard to the effect of non-production of the original Will. It was observed in this regard that as per Section 62 of the Indian Evidence Act every document is required to be proved by producing the primary evidence. Explanation 2 provides that if a number of documents are prepared by a uniform process then each document is primary evidence of the contents of the rest. 

In this case, a certified copy, from the office of Sub Registrar, was produced. The original notebook, where a copy was pasted, was brought by Sh. Jagtar Singh. Hence, the Court was of the view that Will was proved by producing primary evidence. 

Moving on to the next argument on the frequent changes in the different Wills executed by the testator, the Court opined that it is well settled that the last Will of the testator is to prevail. 

The Court, highlighting the various aspects of the evidence produced to prove this Will, opined, 

“This Court has seen the certified copy of the Will. It bears a photograph of the testator. The correctness of the aforesaid photograph is not disputed. The defendants have also not led any evidence to prove that late Sh. Sohan Singh Padda did not sign the Will. In such circumstances, the mere fact that late Sh. Sohan Singh Padda changed his previous Will executed on 26.10.1998 does not create a doubt about the correctness of the registered Will.”

Lastly, on the argument of the presence of the beneficiary and her husband in the execution and registration of Will, the Court opined that in the absence of any evidence to prove that Smt. Mohinder Kaur or her husband influenced the execution of the Will, it would not be appropriate to doubt the correctness of a registered Will, which not only bears the signatures of the testator but also his photograph. 

Consequently, both the appeals were dismissed, with costs.